Rose v. Saul, No. 7:2019cv00091 - Document 24 (E.D.N.C. 2020)

Court Description: ORDER granting 15 Motion for Summary Judgment; denying 17 Motion for Judgment on the Pleadings. Signed by Chief Judge Terrence W. Boyle on 8/13/2020. (Stouch, L.)

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Rose v. Saul Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DI STRI CT OF N ORTH CAROLINA SOUTHERN DIVISION No. 7: 19-cv-9 1-BO CHRISTOPHER ROSE, Plaintiff, ) ) ) ) V. ANDREW SAUL, Co mmissioner of Soc ial Security , 1 Defendant. ) ) ) ) ) ) ORDER Thi s cause comes before the Court on plaintiffs motion for summary judgment [DE 15) and defendant' s motion fo r judgment on the pleadings [DE 17) . A hearing was held on this matter before the undersigned on July 28, 2020 via videoconference . For the reasons discussed below, plaintiffs motion is granted, and defendant's motion is denied. BACKGROUND Plaintiff Christopher Rose is an Iraq War combat veteran. Mr. Rose endured a series of traumatic and harrow ing epi sodes during hi s dep loy ment. As a resu lt, he suffers from, among other things, severe post-traumatic stress disorder, migraine headaches, and insomnia. In December 20 16, the Department of Veterans Affairs (VA) Medical Center in Hampton, Virginia evaluated Mr. Rose for disability and gave him a 100% disability rating. His final assessment of 100% di sabled was based on a 70% rating for PTSD and a 50% rating for migraine headache di sorder. In March 20 18, Mr. Rose protecti ve ly filed an application for period of disability and disability insurance benefits under Title II of the Social Security Act, all eging an onset of di sabi lity of June 11 , 20 16 due to PTSD , migraine headaches, tendon inj uries to the knee and achilles, and 1 Saul has been substituted as the proper defendant pursuant to Fed. R. Civ. P. 25(d). Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 1 of 10 Dockets.Justia.com Stage 3 kidney cancer. T he application was denied initially and upon reconsideration. A Social Securi ty Adm ini strative Law Judge ("ALJ") conducted a hearing on Mr. Rose ' s application on December 20, 20 18. On January 30, 2019, the ALJ issued an unfavorab le decision . The ALJ found that Mr. Rose suffered from the fo llowing severe impairments : PTSD, idiopathic episodic paresthesia, obstructive sleep apnea, history of kidney cancer with partial nephrectomy, migraines, thyroid nodule, and diabetes mellitus. Tr. 17. The ALJ also fo und that Mr. Rose was unable to perform any of hi s prior work. But based on the ALJ's assessment of Mr. Rose's residual functional capacity (" RFC"), she nonetheless concluded that there were a significant number of other jobs in the national economy which Mr. Rose could perform. Tr. 24- 25 . The ALJ did not mention or discuss the VA ' s disabil ity rating in her decision. After the Social Security Appeals Council denied his req uest for review, Mr. Rose brought thi s action under 42 U.S .C. § 405(g) for review of the final decision of the Commi ssioner denying his claim for disability insurance benefits. DISCUSSIO I. The ALJ decision Under the Social Security Act, an individual is considered disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment whi ch can be expected to res ult in death or which has lasted or can be expected to last fo r a continuous period of not less than twelve months. " 42 U .S.C. § 1382c(a)(3)(A). The Act further provides that an individual "shall be determined to be under a disabi lity only if his physical or mental impairment or impairments are of such severity that he is not only unabl e to do his previous wo rk but cannot, considering hi s age, education, and work experience, engage in any 2 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 2 of 10 other kind of substantial gainful work which exists m the national economy." 42 U.S.C. § l 382c(a)(3)(B). Regulations issued by the Commissioner establi sh a five-step sequential evaluation process to be fo llowed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, if the Social Security Administration determines that the claimant is currently engaged in substantial gainful activity , the claim is denied. If not, step two asks whether the claimant has a severe impairment or combination of impairments. If the claimant has a severe impairment, it is compared at step three to those in the Listing of Impairments ("Listing") in 20 C.F.R. Part 404, Subpart P, App . 1. If the claimant' s impairment meets or medically equals a Listing, disability is conclusively presumed. However, if the claimant' s impairment does not meet or equal a listed impairment, then the analysis proceeds to step fo ur, where the claimant' s residual functional capacity (RFC) is assessed to determine whether plaintiff can perform hi s past work despite his impairments. If the claimant cannot perform past re levant work, then the burden shifts to the Commissioner at step five to show that the claimant- based on age, education , work experience, and RFC- can perform other substantial gai nful work. If the claimant cannot perform other work, then the claimant is fo und to be disabled. See 20 C.F.R. § 416 .920(a)( 4). Here, the analysis ended at step five when the ALJ considered Mr. Rose's RFC and determined that, although he was unab le to perform his past relevant work, he was able to perform other jobs that existed in significant numbers in the national economy. II. Plaintiffs claim s of error In his written brief, Mr. Rose argues that the ALJ committed the fo llowing errors: (1) in assessing the RFC , by faili ng to make a finding about Mr. Rose ' s intermi ttent incapacity caused 3 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 3 of 10 by the periodically debilitating effects of the PTSD, headache disorder, and fatigue; and (2) at step five , by relying on a response to an incompl ete hypothetical question posed to th e vocational expert ("VE") w itness . At the hearing, however, counsel for Mr. Rose raised a third and salient issue for this Court to consider in its review. Specifically, counsel raised the issue of whether the ALJ erred by fai ling to afford substanti al weight to the VA 's 100% di sabili ty rating- or at least articulate specific, persuasive reasons why the di sabi lity rating should be affo rded less than substantial we ight. III . The Court ' s review U nder 42 U.S .C. § 405(g), thi s Court's review of the Commissioner's decision is limited to determining whether the decision is supported by substanti al evidence and whether the Commissioner employed the correct legal standard . Richardson v. Perales, 402 U.S . 389, 40 1 ( 1971 ). " Substantial evidence is such relevant evidence as a reasonabl e mind might accept as adequate to support a conclusion." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Ci r. 2005) (per curi am). " A necessary predi cate to engaging in substanti al evidence review is a record of the bas is for the ALJ's ruling." Radford v. Colvin, 734 F.3d 288 , 295 (4th Cir. 2013 ). " [C]ourts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound fo undation for the Secretary's findings , and that his conclusion is rational. " Vitek v. Finch, 438 F.2d 11 57, 11 57- 58 (4th Cir. 1971 ). A. The ALJ erred by failing to consider and afford weight to the VA disability rating Going back decades, the Fourth Circuit has emphasized that ALJs must give weight to certain medical opinions and disability determinatio ns. See Vitek v. Finch, 438 F.2d 1157, 1160 ( 4th Cir. 1971 ). In DeLoatche v. Heckler, the court held that an ALJ must consider as evidence the 4 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 4 of 10 disability determination of a state agency, and that an ALJ decision which ignored such a determination failed to provide the requisite findings and explanations to enable judicial review. 715 F.2d 148, 150 (4th Cir. 1983). More recently , in Bird v. Commissioner of Social Security Administration, the court held that VA ratings must be afforded "substantial weight" unless the ALJ can clearly explain why less weight is appropriate. 699 F.3d 337, 343 (4th Cir. 2012). In January 20 17, the Social Security Administration published final rules titled "Revisions to Rules Regarding the Evaluation of Medical Evidence." 82 Fed. Reg. 5844; see also 82 Fed. Reg. 15132 (March 27, 20 17) (amending and correcting the final rules published at 82 Fed. Reg . 5844) . Among other things, these final rules amended the regulations at 20 C.F.R. §§ 404.1504 and 416.904 (decisions by other governmental agencies and nongovernmental entities). The new rules state that, for disability claims filed after March 27, 20 17, SSA " will not provide any analysis in [its] determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. " 20 C.F.R. §§ 404 .1504 and 416.904. Despite this, the new rules attempt to assure the claimant that SSA will still "consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision .... " Id. SSA also rescinded SSR 0603p, a policy directive which had concluded that "evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered. " As noted above, the ALJ in this case did not mention- much less discuss- Mr. Rose ' s 100% VA di sability rating . Citing the new Social Security regulations, the ALJ wrote that she would "not discuss or analyze another agency's or provider's prior opinions about whether [the 5 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 5 of 10 Claimant is] disabled , blind , employable, or entitled to any benefits." Tr. 23. In the ALJ's view, the new regulations superseded the Fourth Circuit's decision in Bird. This was error. The new rules did not supersede the Fourth Circuit's decision in Bird, and the ALJ committed reversible error by failing to afford substantial weight to Mr. Rose 's 100% VA rating. The ALJ's assumption that the new SSA regulations supplanted Fourth Circuit case law rests on a fundamental misunderstanding of Bird and the cases that preceded it. Bird did not interpret a prior regulation, alterable by SSA. Rather, Bird followed a line of cases expounding on what is required from the ALJ to enable the Court to conduct its review. Bird began its analysis by invoking DeLoatche , 715 F.2d at 150, whic h explained that the judicial task under § 405(g) was impossible without sufficient findings and explanations from the ALJ. 699 F.3d at 343. An ALJ decision that overlooked an agency disabi lity determination failed in this respect. DeLoatche, 715 F.2d at 150. The court then surveyed the widespread agreement between the courts of appeals-as well as within SSA itself- that VA ratings must be considered by ALJs. Bird, 699 F.3d at 343 (citing McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) ; Kane v. Heckler, 776 F.2d l 130, 11 35 (3 d Cir. 1985); Cutler v. Weinberger , 516 F.2d 1282, 1286 (2d Cir. 1975); and SSR No. 06- 03p) . After reviewing the overwhelming agreement on the issue, the Court arrived at the heaii of its analysis. It reaso ned: The VA rating decision reached in Bird's case resulted from an evaluation of the same condition and the same underl ying evidence that was relevant to the decision facing the SSA . Like the VA, the SSA was required to unde1iake a comprehensive evaluation of Bird's medical condition. Because the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency. Thus, we hold that, in making a disability determination, the SSA must give substantial weight to a VA disability rating. 6 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 6 of 10 Id. This holding was un affected by SSA 's new rules. An ALJ who fails to address a VA disability rating leaves a gap in hi s or her decision, rendering judicial review impossible. Nowhere is this hole more glari ng than in a case like this, where the VA determined that Mr. Rose was 100% disabled . To be sure, VA and SSA employ different technical rules for arri ving at their respective determinations . But it stretches the imagination to believe that the difference in methodology accounts for the gap between the VA 's 100% disability rati ng and SSA ' s finding of not disabled. An ALJ decis ion that fails to address such a logical gap fai ls to provide the requisite findin gs and explanations to enab le judicial review. The Court' s reading of Bird is buttressed by Woods v. Berryhill, where the Fourth Circuit explained that, in order to afford less than substantial weight to another governmental agency's disability determination, the ALJ must give "persuasive, specific, valid reasons. " 888 F.3d 686, 692 (4th Cir. 20 18). Without such explanatio n, according to Woods , a court " cannot engage in a meaningful review. " Id. at 692- 93. Moreover, Woods rejected the Commi ssioner' s argument that the ALJ can escape discussing the other agency ' s disability decision by merely considering the evidence underl ying that decision . Id. at 693- 94. The court wrote: " [i]t m ay well be that the ALJ co nsidered this evidence in deciding both which doctors and evidence to credit and whether the [other agency's] decision deserved substantial weight. But meaningful review cannot rest on such guesswork." Id. By rejecting this argument, the court necessarily rejected the new SSA regulations ' approach. 2 It is not enough that the ALJ purport to engage with the medical evidence 2 In a footnote, Woods references the new regul ations from 82 Fed. Reg. 5844. 888 F.3d at 69 1 n. l . The court' s reference to the new regu lations does not call into question the continuing precedential value of Bird. Indeed , Woods makes clear that without consideration of a VA decision, judicial review is simply not possib le. 7 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 7 of 10 on which the other agency ' s decision reli ed . T he decision itse lf must be di scussed, afforded substanti al weight, or else qualified with specific reaso ns. In this case, the VA determined that Mr. Rose was I 00% di sabl ed. The ALJ, on the other hand, determi ned that Mr. Rose was not disabled. Two government agencies performing similar assessments reached polar opposite conclusions, leaving a glaring hole in the record and preventing j udicial review. Bird remedies this pro blem, and SSA ' s new regulations did not overru le Bird. By fa iling to address Mr. Rose ' s 100% VA di sability rating, the ALJ erred. B. Th e ALJ erred by failing to make a specific finding on whether plaintiff's intermittent incapacity constitutes an inability to engage in substantial gainful activity. The Court also fi nds that the ALJ committed legal error by not addressi ng Mr. Rose ' s peri odic incapacity . The evidence presented to the ALJ estab lished that Mr. Rose suffers fro m multiple conditi ons, including PTSD , obstructi ve sleep apnea, and migraines. Symptoms Mr. Rose actively experiences as part of his PTSD include depressed mood, anxiety, chronic sleep impairment, and difficulty adapting to stressful circ umstances. Tr. 1345 . In his evaluations for his sleep issues- which res ult in fati gue and daytime somnolence- he was consistentl y scored as abnormal. Tr. 1604. At the ALJ hearing, Mr. Rose testifie d extensively about hi s dayti me somnolence, fati gue, and resulting inability to maintain a schedul e. Tr. 47- 54. "An individ ual does not have to be totally help less or bedri dden in order to be fo und di sabled under the Social Securi ty Act. " Totten v. Califano , 624 F .2d 10, 11 (4th Cir. 1980). And a claimant is not required to "show an inability to engage in any substantial gainfu l acti vity every day of hi s existence." Id. The evidence in the record shows that the combined effects of Mr. Rose's PTSD , insomni a, sleep apnea, and headaches cause him to be intermittentl y incapacitated. Whi le the ALJ limited Mr. Rose to light work, the decision contains no fi ndi ng or di scussion about hi s 8 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 8 of 10 abi li ty to perform this work with any regularity or consistency in a competitive employment environment. Relatedly , the ALJ's decision fai led to properly account for Mr. Rose ' s limitations in concentration, persistence, and pace (CPP) . The ALJ found that Mr. Rose had moderate CPP limitations, but in assessing his RFC, onl y included limitations for " simpl e and routine tasks. " " [T]he abi lity to perform simple tasks differs from the ability to stay on task. " Mascio v. Colvin , 780 F.3d 632, 638 (4 th Cir. 20 15). In addressing the CPP limitation in the RFC, the ALJ's only explanation is as follows: The evidence shows that the claimant could read books and watch television. He could drive and do basic tasks around the home (Hearing testimony). In light of this as well as evidence discussed elsewhere in this decision, the undersigned believes that the claimant does not have a significant deficit in the area of pace. His moderate limitations in these areas are addressed by limiting him to concentrating and persisting fo r simple, routine tasks. Tr. 24 . This explanation is unpersuasive. Mr. Rose ' s ability to read books, watch TV, drive, and do basic tasks arou nd the house says nothing about his abi lity to stay on task in a work environment. The evidence strongly suggests that Mr. Rose must rest freq uently, or at least change tasks regularly , as a result of his daytime som nol ence and fatigue. Indeed, this is part of the reason for his intermittent incapacity. The ALJ's explanation for why she included minimal CPP limitations is insufficient. C Remand is appropriate. The Court has identified two errors in the ALJ's decision and , therefore, need not address plaintiffs third argument: whether the ALJ relied on a response to an incomplete hypothetical question to the VE. When the ALJ decision lacks sufficient explanation , the proper course is generally to remand to the agency. Radford v. Colvin, 734 F.3d 288 , 295 (4th Cir. 2013). On 9 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 9 of 10 remand, the ALJ must give substantial weight to the VA's disabi lity determination unless there are specific, persuasive reasons for affording it less weight. Additionally, the ALJ must consider the combined effects of Mr. Rose's impairments and make a finding on his intermittent incapacity. The ALJ must also provide a legitimate explanation- if there is one-for why no additional CPP limitations were included in the RFC. CONCLUSION Having conducted a full review of the record and decision in this matter, the Court concludes that remand is appropriate. Plaintiff's motion [DE 15] is GRANTED and defendant's motion [DE 17] is DENIED. The Commissioner's decision is REMANDED for further proceedings consistent with the foregoing. SO ORDERED, this ,£.J day of August, 2020. T~,~~NCE W. BOYLE CHIEF UNITED STATES DI TRICT JUDGE 10 Case 7:19-cv-00091-BO Document 24 Filed 08/14/20 Page 10 of 10

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